Compelling a person to serve as a human shield and damaging property during a house search: a civil action for damages filed by HaMoked: Center for the Defence of the Individual against the state for extensive damage caused to the house and personal property of residents of the Occupied Territories during a search by IDF soldiers, and for compelling a member of the family to serve as a human shield when the soldiers broke into the house
The incident and subsequent action taken by HaMoked
Before dawn on 9 September 2002, Israeli soldiers came to the home of a Palestinian family in Assira Al Shymalya, Nablus District. The soldiers surrounded the house and threw two stun grenades and fired a number of rounds at the house. The soldiers ordered the occupants to leave the house, which they did. The soldiers were looking for a member of the family, but the occupants told them that he was not in the house. At that stage, the soldiers broke into the house. They forced a member of the family to serve as a human shield: they ordered him go into each room, verify that nobody was there, and then leave the room. Then the soldiers opened fire into the room. The gunfire was massive and uncontrolled, and caused extensive damage: bullet holes covered the walls, most of the windows in the house were shattered, and the furniture was irreparably damaged. Later, the soldiers took the father of the family, his hands bound and his eyes covered, to a nearby location, where he met a person who identified himself as “Captain Maruf,” who threatened him that, if his son did not turn himself in, the house would be demolished and his son killed.
HaMoked wrote to the legal advisor for the West Bank and demanded that the incident be investigated. The Military Police Investigations Unit opened an investigation but did not complete it by the time that the civil action was filed. Use of Palestinian civilians as “human shields”
The use of Palestinians as human shields is intended to force the Palestinians to participate in military operations, in part during house searches and lifting of suspicious objects. In doing so, the soldiers breach the Palestinians' rights to life, dignity, and liberty, which enshrined in the Basic Law: Human Dignity and liberty. The act also violates international law, in particular provisions of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), which prohibits civilians to be used as a means of protection or as hostages to further military operations, and prohibits civilians from being compelled to assist the occupying forces.
In addition, the use of human shields violates the temporary injunction issued by the High Court of Justice (HCJ) on 18 August 2002 in a petition filed by Adalah and a number of human rights organizations, including HaMoked, against the army’s use of Palestinians as human shields or hostages. (HCJ 3799/02 - Adalah et al. v. Yitzhak Eitan, IDF Major General, Central Command et al.
) The injunction prohibits the army from using civilians as human shields or hostages, including by means of the “neighbor procedure” (a procedure in which the army forces a person to enter and search a neighbor’s home before soldiers enter), until final decision on the interim order application.
However, on 21 January 2003, the HCJ reduced the scope of the temporary injunction, and allowed the military order referred to as “prior warning,” whereby the army is allowed “to be assisted” by a Palestinian civilian in the course of a military action to make an arrest, with the consent of the civilian, if the military commander in the field believes that the assistance would not endanger the civilian’s life. However, on 5 September 2004, in a hearing on the petition, Chief Justice Aharon Barak said that the Fourth Geneva Convention prohibits the occupying forces to force the recruitment of a local resident. Barak criticized the “prior warning” procedure and urged the army to refrain from using it, in that a neighbor would rarely give his willing consent – when an army unit arrives in the middle of the night, a neighbor would be too frightened to refuse to cooperate. The HCJ stated that it would give its judgment at a later date.